The Michael Davidson Email - SCO v. IBM (Groklaw) [LWN.net]

Here's a fun one: Groklaw has a message from Michael Davidson, thanks to the unsealing of various exhibits in SCO v. IBM. This message, from 2002 (i.e. before the suit was filed), summarizes his attempt to find copyright infringements in Linux; it was sent to Reg Broughton, and thence to Darl McBride. "The hope was that we would find a 'smoking gun' somwhere in code that was being used by Red Hat and/or the other Linux companies that would give us some leverage.... At the end, we had found absolutely *nothing*. ie no evidence of any copyright infringement whatsoever." SCO decided to sue anyway.

The Michael Davidson Email - SCO v. IBM (Groklaw)

Posted Jul 14, 2005 23:16 UTC (Thu) by JoeBuck (subscriber, #2330) [Link] (2 responses)

This would seem to be grounds for a class-action shareholder suit against SCO: every investor who bought SCO stock on the hope that their legal schemes would succeed has been defrauded from the beginning; it should be possible to point to specific statements by Darl McBride where he asserted things he had been informed were not true. Maybe he could be sued personally for this, I'm not sure.

The Michael Davidson Email - SCO v. IBM (Groklaw)

Posted Jul 15, 2005 1:41 UTC (Fri) by brouhaha (guest, #1698) [Link]

It should also be grounds for the FTC to bring criminal charges against some of the executives, including D., for operating a pump-and-dump scam.

The Michael Davidson Email - SCO v. IBM (Groklaw)

Posted Jul 15, 2005 16:08 UTC (Fri) by dmarti (subscriber, #11625) [Link]

I think this was the basis for a thread in the SCOX board on finance.yahoo.com -- you might want to bring it up there next time the price goes down much.

The Michael Davidson Email - SCO v. IBM (Groklaw)

Posted Jul 14, 2005 23:48 UTC (Thu) by rknop (guest, #66) [Link]

Isn't there some criminal behavior in there somewhere?

I mean, sheesh a reesh, these SCO people have caused more sound and fury and media attention and wasted time and fear/uncertainty/doubt than some hackers who do jail time and are now protrayed as a new brand of terrorist.

If we're gonna be paranoid bout cyberterrorists, can't we do something about the litigaterrorists plauging our society? Starting with Darl "Rectal Defilade" McBride?

-Rob

The Michael Davidson Email - SCO v. IBM (Groklaw)

Posted Jul 15, 2005 2:12 UTC (Fri) by huffd (guest, #10382) [Link]

Now everyone that McBribe ever slandered has recourse. -Including RHAT !!

The Michael Davidson Email - SCO v. IBM (Groklaw)

Posted Jul 15, 2005 3:57 UTC (Fri) by vondo (guest, #256) [Link]

Last paragraph:

"There is indeed, a lot of code that is common between UNIX and Linux ... but invariably it turned out that the common code was something that both we (SCO) and the Linux community had obtained (legitimately) from some third party."

Which if you recall is exactly the "evidence" they later showed to DiDio and others as proof of the Linux kernels authors' wrong doing. Truly astounding.

The Michael Davidson Email - SCO v. IBM (Groklaw)

Posted Jul 15, 2005 8:30 UTC (Fri) by vblum (guest, #1151) [Link] (1 responses)

Ah, no. This sounds like the trivial case of an engineer, whose vision is narrowed by too much specialist knowledge and, thus, preformed opinions, creating petty obstacles against the broad vision of his manager.

It sounds like Dilbert, really.

I am not surprised that Darl himself then did the work, and found lots of infringing code after half a year of code review (before the lawsuit was actually filed).

Well, I sure hope Darl did. For if his engineers didn't find anything, and he _didn't_ do the necessary work himself, who else would have?

Just create the perception

Posted Jul 15, 2005 10:07 UTC (Fri) by rev (guest, #15082) [Link]

Well, I'm speculating here, maybe Darl & Co decided that one doesn't need actual infringing code to collect protection money. It suffices to create the public perception that Linux contains Caldera/TSG's copyrighted material. Hence have selected journalist sign a restrictive NDA. Show them two sheets of paper, the contents of the first you claim come from your source code, the contents of the second you claim are copied bits found in Linux, and have these journalists spread your gospel. Brag about millions of lines of copied code (which statements, with an enormous stretch (X, BSD code)) are true) in public statements. Hire a high profile laywer to sue an high profile target for an enormous amount of money.

It might be, that Caldera/TSG actually believes that IBM and Linux have damaged them enourmously. Here's a first aproximation of a disection of Darl-think:

Some Axioms underlying Caldera/TSG's belief system (needs not to be consistent):

1) Only companies are capable of producing quality products.
2) Linux is a community effort.
3) Linux is a quality product.
4) Linux is a Unix flavour.
5) The original Unix is the mother of all Unix flavours.
6) Caldera/TSG owns the original Unix.
7) When you are in posession of an original OS XYZ you are entitled to have (near) monopoly on XYZ
8) The US constitution and US copyright law gives an enterpreneur the right to get (very) wealthy over selling copyrighted material.
9) Linux has a far greater market share than Caldera/TSG's offering
10) Linux became a quality product due to IBM's involvement.

A: From 1-5 it follows that Linux must contain "stolen" material from the original Unix.

B: From 1-9 it follows that Linux has denied Caldera/TSG's fundamental right to wealth.

C: From A) and B) it follows that Linux is unlawful.

D: from B it follows that it has no right to exist.

E: From 5), 7), 8) and D) it follows that Caldera/TSG essentially owns Linux.

F: From B) (and 7) it follows that SCO/Caldera has suffered enourmous damages.

A)-E) justify a royalty/protection money collection campaign.

From F) and 10) it follows that IBM owes Caldera/TSG a lot of money.

SCO apart, this is excellent news

Posted Jul 15, 2005 12:51 UTC (Fri) by rsidd (guest, #2582) [Link] (1 responses)

A company, that had every reason to nitpick on the remotest suggestion of infringement in Linux, pored over the entire codebase -- and found nothing. If they didn't find anything, who would? Linux should be safe from such nonsense for a while now.

Don't forget patents

Posted Jul 15, 2005 13:58 UTC (Fri) by man_ls (guest, #15091) [Link]

But we must keep in mind that this was not just the product of some lunatic mind, in this case the CEO of a failing company. This was also a planned attack aided by some makers of rival software, even if it was just sound and fury in the end.

Many people see their businesses faltering, some of them famous for their dirty tricks; they will probably look for more sophisticated attacks later on. Patents is one possible course of action; there are many more, but let's not help the enemy on this one.

Are judges allowed to do that?

Posted Jul 15, 2005 14:23 UTC (Fri) by Max.Hyre (subscriber, #1054) [Link] (4 responses)

From Groklaw:

Stowell said that IBM has brought up the e-mail in court and noted that a judge has refused to dismiss SCO's suit.

Curious. It certainly sounds as if, as soon as this memo was presented, the judge had grounds for dismissal with prejudice.

Is it possible said judge is letting them give sufficient evidence to trivially find for

dismissal,
payment of IBM's legal fees,
punitive damages sufficient to make SCO vanish from the face of the Earth, and
a suit against Darl et al. personally. That is, the liability limitations of corporate law no longer apply?

In the last case, I hope their insurance company has been jacking up premiums commensurate to the increasing risk. I suspect they're re-examining their underwriting guidelines right now.

Are judges allowed to do that?

Posted Jul 15, 2005 14:39 UTC (Fri) by yokem_55 (subscriber, #10498) [Link] (3 responses)

The issue here is that the contents of SCO's lawsuit addresses issues
beyond just copyright infringement. What this does is seal the seal this
whole matter as a contract based dispute if even that.

Are judges allowed to do that?

Posted Jul 15, 2005 15:02 UTC (Fri) by sethg (guest, #14970) [Link] (2 responses)

If I remember correctly, IBM already moved for a partial summary judgement on the copyright infringement issues, and was denied, because SCO claimed that once they finished with their discovery and had access to every single version of of every AIX file in IBM's version-control system, they would be able to prove that some IBM contribution to Linux was derived (via AIX?) from some code that they owned the copyright to.

Yeah, it sounds like bullshit to me, too. But remember, in order to convince a judge to grant a motion for summary judgement, you have to convince him or her that the facts and the law are *so* overwhelmingly in your favor that further argument would just be a waste of time. If the judge in SCO v. IBM wants to give SCO enough rope to hang themselves in the trial, that's his call.

Are judges allowed to do that?

Posted Jul 16, 2005 3:29 UTC (Sat) by gilb (subscriber, #11728) [Link] (1 responses)

You remember correctly. The judge (in PJ's opinion) is being careful to ensure that there is no chance for an appeal. Hence, the judge is making sure to dot the i's and cross the t's.

But the judge also said, that up to this point, SCO has not presented anything that looks like a copyright violation (a paraphrase). Thus, the judge agrees that SCO has not yet come up with any proof.

However, SCO was granted more time and limited discovery to find it. They were put on notice by the judge that this is their last chance to prove copyright infringement.

And you are correct, IBM has a high bar to clear to get a summary judgement. SCO has to only present one fact in dispute to force it to go to trial. So far, they haven't even done that.

Are judges allowed to do that?

Posted Jul 16, 2005 11:04 UTC (Sat) by khim (subscriber, #9252) [Link]

Unfortunatelly (for SCO) we have Linus. Who is famous for patch-rejection. Patch should be very clear to be accepted - unless it's separate part of kernel (like XFS or some driver). And patch should not imlement new layer of abstraction on top of existing ones - unless there are some very compelling reasons.

In practice this means that if you are porting something from Unix to Linux the only way to do this and get your patch accepted is to look on Unix code and rewrite everything from scratch - architectures are too different for any other approach.

And this means that even if some code is "ported" from Unix this code is still written from scratch - thus non-infringing (ideas are not copyrightable!).